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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95206
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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My wife is with a Pending I-130 ( F2A) petition, based on the

Customer Question

My wife is with a Pending I-130 ( F2A) petition, based on the USCIS website, the application is still under initial review. Her Priority date is April 29, 2013. She is outside United States at the moment. Recently, she was granted with a 10 year multiple entry tourist visa.

She is planning to come over for a visit this coming September. My question is: Based on the August 2013 Visa Bulletin, F2A CATEGORY is now current. Can she come over to the USA using her TOURiST VISA, then apply for Adjustment of Status? What are the chances of her getting denied and or approved for AOS? Again, her I-130 application with a PD of April 2013 is still on initial review, no NOA2 yet.

Hoping for a feedback from your end. Thank you.
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. I just ask for two things: 1) Before you sign off, please remember to rate me positively as that is the only way that I am paid and your question does not close after you rate me so I can still answer additional questions without additional charge if you have follow-ups even weeks or months later; and, 2) IF I have bad news for you, please remember I am only the messenger. When you rate me, it is my service to you that you rate, not whether the news is good or bad. I will try my best to give you a solution, but sometimes the law does not have a good one.



That's not an easy question. IF she can get in, IF they let her in, then yes, she can apply for Lawful Permanent Resident status without having to leave the U.S. But the problme is that she is not supposed to use a B-2 tourist visa to enter the U.S. if her intention is to stay which it basically would be. So I think that they pretty much will not let her in. The only exception that exists is for immediate relatives of U.S. Citizens. Here is a link:


http://www.hooyou.com/familybased/exceptions.html

So honestly, I would not even try. The chances of her getting in are slim and the chances are high of her being denied entry and given a 5 year exclusion penalty or permanent penalty which means that she would have to apply for a waiver to come back. The risk of the 5 year or permanent penalty is if she tries to lie to them about her intention. So again, I would not risk this. I am truly sorry. I know it is inconvenient, I know you want to be together quicker than later, but I would play it safe.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95206
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 2 other Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.


Thank you so much Atty. Senmartin. I have some follow up questions if you dont mind.

 

1.) We already purchased a roundtrip ticket for her. Can she still travel to the USA in September, just for a month or 2 vacation without even considering filing for AOS even if PD is already current as per your excellent advise?

 

2.) What are the chances that immigration officer/s at the port of entry wont allow her to come in? Would that mean she will be returned to our homecountry immedietly?

 

Thank you so much. We would not want to make any drastic mistake at this point. We would rather wait for her Greencard to come the usual way than filing for AOS then.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Sorry about the delay. I'm not at a computer now and am answering through my cell. I would say that it doesn't matter to them that she already purchased the ticket and that she will say that she will only stay for two months. They just aren't going to believe. Unfortunately, since UCIS and CBP do not release statistics, I cannot tell you the chances, but they aren't good.
Customer: replied 1 year ago.


Thanks Atty. Having said so, should we just wait for the F2A Priority Date to retrogress before she can visit me here, that way she can be admitted to USA without doubt that she'll be filing for AOS? In my understanding, her having the tourist visa on hand has no guarantee that she will be allowed in at the port of entry?


 


A little bit confused where the denial risk will set in..whether at the port of entry or upon filing the aos.


 


Thanks

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
I would just process her as normal. The NVC should be sending you letters to complete the process for her to immigrate. If the dates do not retrogress, she should be able to immigrate in about 6 months or so. And you can always go visit her during this time.

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